Chang Fan Zeng v. Holder , 487 F. App'x 643 ( 2012 )

10-3482-ag
Zeng v. Holder
BIA
A077 993 929
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 10th day of July, two thousand twelve.
PRESENT:
JOHN M. WALKER, JR.,
ROBERT D. SACK,
REENA RAGGI,
Circuit Judges.
_______________________________________
CHANG FAN ZENG,
Petitioner,
v. 10-3482-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Michael Brown, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Holly M. Smith, Senior
Litigation Counsel; Joseph D. Hardy,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is GRANTED.
Chang Fan Zeng, a native and citizen of the People’s
Republic of China, seeks review of an August 3, 2010
decision of the BIA denying his motion to reopen. In re
Chang Fan Zeng, No. A077 993 929 (B.I.A. Aug. 3, 2010). We
assume the parties’ familiarity with the underlying facts
and proceedings, which we reference only as necessary to
explain our decision to grant the petition.
We review the BIA’s denial of Chen’s motion to reopen
for abuse of discretion, Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006), and the BIA’s determination of changed
country conditions for substantial evidence, Jian Hui Shao
v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). An alien must
file a motion to reopen within 90 days of the agency’s final
administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i);
8 C.F.R. § 1003.2(c)(2). Although Chen’s motion was
indisputably untimely because it was filed more than five
years after the agency’s final order of removal, see
8 U.S.C. § 1229a(c)(7)(C)(i), there is no time limitation
for filing a motion to reopen if it is “based on changed
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country conditions arising in the country of nationality or
the country to which removal has been ordered, if such
evidence is material and was not available and would not
have been discovered or presented at the previous
proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii); see 8 C.F.R.
§ 1003.2(c)(3)(ii).
In finding that Zeng did not demonstrate changed
country conditions, the BIA found that a village committee
notice and an affidavit from Zeng’s parents purportedly
showing that the Chinese government had become aware of his
practice of Falun Gong and had summoned him home for
punishment did not suffice because “[t]he fact that the
Chinese Government may have become aware of [Zeng]’s changed
personal circumstances does not constitute a change in its
policy toward Falun Gong practitioners and supporters, which
remains the same.” C.A.R. at 4. Zeng maintains, to the
contrary, that these facts evidence “changed circumstances
arising in the country of nationality” sufficient to excuse
the untimeliness of his motion. 8 C.F.R § 1003.2(c)(2). We
have not addressed in a precedential decision the issue
raised here, i.e., whether a change that pertains to a
particular individual in his home country, as opposed to a
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general change in policy, is sufficient to establish the
“changed country conditions” necessary to excuse the 90-day
time limitation on motions to reopen. While we have
summarily concluded that “[h]ighly localized persecution
. . . generally will not be considered to be a changed
country circumstance,” Mindeng Zheng v. Holder, No. 10-2289-
ag, 2012 WL 718040, at *4 n.7 (2d Cir. Mar. 7, 2012)
(summary order); see Duan Ying Huang v. Holder, 358 F. App’x
214, 215–16 (2d Cir. 2009) (summary order); Min Hui Chen v.
Holder, 331 F. App’x 50, 52 (2d Cir. 2009) (summary order),
sister courts appear to have ruled otherwise in published
decisions, see Xiu Zhen Lin v. Mukasey, 532 F.3d 596, 597
(7th Cir. 2008) (Posner, J.); Zhang v. U.S. Att’y Gen., 572
F.3d 1316, 1320 (11th Cir. 2009); Jiang v. U.S. Att’y Gen.,
568 F.3d 1252, 1258 (11th Cir. 2009); see also Joseph v.
Holder, 579 F.3d 827, 834 (7th Cir. 2009) (holding that
“plain language of the regulation . . . does not restrict
the concept of ‘changed circumstances’ to some kind of broad
social or political change . . . as opposed to a more
personal or local change”). Rather than decide the issue
conclusively on the record in this case, we think it prudent
to remand to the BIA so that the agency may decide in the
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first instance whether it credits the evidence Zeng offered
to support his motion. See Qin Wen Zheng v. Gonzales, 500
F.3d 143, 146-49 (2d Cir. 2007). If it were not to do so,
that may provide an independent reason for denial of the
motion, making it unnecessary for the agency or this court
to address the question identified. If it were to do so,
however, the agency should then explain how, if at all, its
construction of changed country conditions differs from that
stated by the Seventh and Eleventh Circuits.
For the foregoing reasons, the petition for review is
GRANTED and the case REMANDED to the BIA for further
proceedings consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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